# Dudley v. Brown

> District Court, M.D. Pennsylvania · November 26, 2019

URL: https://www.frixlaw.com/law-library/cases/10408010

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** November 26, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10408010

## How later opinions describe it (automated extraction)

- noting that when considering a motion to dismiss, courts may consider 5 “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading”
- noting that “[a]n inmate’s transfer from 10 the facility complained of generally moots the equitable and declaratory claims”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSHUA DUDLEY, :
Plaintiff :
: No. 1:19-cv-1157
v. :
: (Judge Rambo)
OFFICER TIM BROWN, et al., :
Defendants :

MEMORANDUM

This matter is before the Court pursuant to the partial motion to dismiss filed
by Defendants Officer Tim Brown (“Brown”), Officer Clark (“Clark”), Sergeant
Craig (“Craig”), Officer Rowe (“Rowe”), Officer Hammer (“Hammer”), Warden
Brian S. Clark (“Warden Clark”), and Director of Security Roger Lucas (“Lucas”).1
(Doc. No. 26.) Pro se Plaintiff Joshua Dudley (“Plaintiff”) has neither filed a brief
in opposition nor a motion seeking an extension of time to do so. Accordingly,
because the time for Plaintiff to respond has expired, the partial motion to dismiss is
ripe for disposition. For the following reasons, the Court will grant the partial

1 As noted infra, on July 17, 2019, Plaintiff filed what was docketed as a supplement to his
complaint. (Doc. No. 7.) In that supplement, Plaintiff indicated that he wished to also proceed
against Defendants Warden Clark and Lucas and that he was amending his complaint pursuant to
Rule 15 of the Federal Rules of Civil Procedure. (Id. at 7-8.) Although Defendants Warden Clark
and Lucas were not officially served, counsel has filed the partial motion to dismiss on their behalf
as well. (Doc. No. 26.) Defendants have also treated Plaintiff’s supplement as an amended
complaint. The Court will therefore direct the Clerk of Court to note on the docket that Plaintiff’s
supplement is an amended complaint and to add Warden Clark and Lucas to the docket as
Defendants in this matter, with a notation that they are represented by attorney Stephen B.
Edwards.
motion to dismiss, dismiss pro se Plaintiff Joshua Dudley (“Plaintiff”)’s claims
against Defendants Clark, Craig, Hammer, Warden Clark, and Lucas, and grant

Plaintiff leave to file an amended complaint.
I. BACKGROUND
Plaintiff, who is currently incarcerated at the State Correctional Institution in

Camp Hill, Pennsylvania (“SCI Camp Hill”), initiated the above-captioned action
on July 3, 2019 by filing a complaint pursuant to 42 U.S.C. § 1983 against
Defendants Brown, Clark, Craig, Rowe, and Hammer, all of whom are employed at
the Dauphin County Prison (“DCP”). (Doc. No. 1.) He filed a motion for leave to

proceed in forma pauperis and an amended complaint,2 adding Warden Clark and
Lucas as Defendants, on July 17, 2019. (Doc. Nos. 6, 7.)
Plaintiff alleges that on April 1, 2019, while incarcerated at DCP, he was

transferred to a new cell after having a physical altercation with another inmate.
(Doc. No. 7 at 1.) After being relocated, Plaintiff asked Defendant Rowe when he
would receive his personal property. (Id.) Defendant Rowe informed Plaintiff that
he would receive his property the next day. (Id.) Plaintiff responded by cursing at

Defendant Rowe and punching the wall until his hand bled. (Id. at 1-2.) He then

2 As noted supra, the Court is construing Plaintiff’s supplement as an amended complaint and
therefore deems it to be the operative pleading in this matter.
2
informed Defendant Rowe that he needed medical attention. (Id. at 2.)
Instead of receiving medical attention, Plaintiff alleges that he was beaten by

Defendant Brown and “others.” (Id.) Plaintiff maintains that Defendant Brown
punched him in the face several times, pinned him up against the bunk, and picked
him up and slammed him onto the cell floor. (Id.) Another unnamed officer

“speared” Plaintiff to the ground once he stood up. (Id.) Plaintiff asserts that he was
subjected to the beating for “abou[t] 5 minutes” while Defendant Rowe stood and
watched. (Id. at 3, 6.) Plaintiff was subsequently handcuffed and placed in a
restraining chair. (Id. at 3-4.) He alleges that while in the restraining chair,

Defendant Craig told him to “shut up and to be quiet unless [he] wanted to receive
further consequences wors[e] [than] the consequences that [he] just got.” (Id. at 4.)
Plaintiff maintains that he suffers from recurring nightmares because of the incident.

(Id. at 4-6.) As relief, Plaintiff requests damages and for all officers involved to be
“suspended indefinitely.” (Id. at 6-7.)
On August 7, 2019, the Court directed the Clerk of Court to effect service
upon Defendants. (Doc. No. 12.) After receiving an extension of time (Doc. Nos.

22, 23), Defendants filed their motion to dismiss on October 21, 2019 (Doc. No. 26)
and their brief in support on November 4, 2019 (Doc. No. 29).

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II. STANDARD OF REVIEW
A. Motion to Dismiss, Federal Rule of Civil Procedure 12(b)(6)

When ruling on a motion to dismiss under Rule 12(b)(6), the Court must
accept as true all factual allegations in the complaint and all reasonable inferences
that can be drawn from them, viewed in the light most favorable to the plaintiff. See

In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court’s
inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Twombly and Iqbal,
pleading requirements have shifted to a “more heightened form of pleading.” See

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To prevent dismissal,
all civil complaints must set out “sufficient factual matter” to show that the claim is
facially plausible. Id. The plausibility standard requires more than a mere possibility

that the defendant is liable for the alleged misconduct. As the Supreme Court
instructed in Iqbal, “where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged – but it has
not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (citing

Fed. R. Civ. P. 8(a)(2)).
Accordingly, to determine the sufficiency of a complaint under Twombly and
Iqbal, the United States Court of Appeals for the Third Circuit has identified the

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following steps a district court must take when determining the sufficiency of a
complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to

state a claim; (2) identify any conclusory allegations contained in the complaint “not
entitled” to the assumption of truth; and (3) determine whether any “well-pleaded
factual allegations” contained in the complaint “plausibly give rise to an entitlement

to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)
(citation and quotation marks omitted).
In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, “a
court must consider only the complaint, exhibits attached to the complaint, matters

of public record, as well as undisputedly authentic documents if the complainant’s
claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d
Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider “any ‘matters
incorporated by reference or integral to the claim, items subject to judicial notice,
matters of public record, orders, [and] items appearing in the record of the case.’”
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B

Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed.
2004)); see also Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.
2002) (noting that when considering a motion to dismiss, courts may consider

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“documents whose contents are alleged in the complaint and whose authenticity no
party questions, but which are not physically attached to the pleading”).

In the context of pro se prisoner litigation specifically, the court must be
mindful that a document filed pro se is “to be liberally construed.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully pleaded,”

must be held to “less stringent standards than formal pleadings drafted by lawyers”
and can only be dismissed for failure to state a claim if it appears beyond a doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

B. Civil Rights Statute, 42 U.S.C. § 1983
Section 1983 is the vehicle by which private citizens may seek redress for
violations of federal constitutional rights committed by state officials. See 42 U.S.C.

§ 1983. The statute states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means
through which “to vindicate violations of federal law committed by state actors.”
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See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting
Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To state a cause of action

under Section 1983, a plaintiff must allege that: (1) the conduct complained of was
committed by persons acting under color of state law; and (2) the conduct violated a
right, privilege, or immunity secured by the Constitution or laws of the United States.

See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting
West v. Atkins, 487 U.S. 42, 48 (1988)).
III. DISCUSSION
Defendants seek partial dismissal of Plaintiff’s amended complaint because:

(1) he has failed to plead facts showing the personal involvement of any of the named
Defendants other than Defendants Brown and Rowe; (2) he has not pled plausible
supervisory liability claims against Defendants Warden Clark and Lucas; and (3)

Plaintiff’s transfer to SCI Camp Hill moots his requests for injunctive relief. (Doc.
No. 29 at 3.) The Court considers each argument in turn.
A. Personal Involvement
Defendants assert that Plaintiff has not set forth cognizable claims against

Defendants Clark, Hammer, and Craig.3 (Doc. No. 29 at 7-8.) Upon review of

3 Defendants concede that Plaintiff has stated plausible claims for relief against Defendants Brown
and Rowe at this time. (Doc. No. 29 at 6-7.)
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Plaintiff’s amended complaint, the Court agrees with Defendants. Plaintiff has
named Defendants Clark and Hammer in the caption, but there are no averments

related to them in the body of his amended complaint. Thus, Plaintiff’s claims
against Defendants Clark and Hammer will be dismissed at this time. See Robinson
v. Wheary, No. 1:16-cv-2222, 2017 WL 2152365, at *1-2 (M.D. Pa. May 17, 2017)

(dismissing complaint pursuant to screening provisions of 28 U.S.C. § 1915(e)(2)
where “the caption of the complaint names numerous individual defendants, [but]
contains no well-pleaded factual averments relating to these specific defendants in
the body of the complaint”).

With respect to Defendant Craig, Plaintiff alleges only that he told him to
“shut up and to be quiet unless [he] wanted to receive further consequences wors[e]
[than] the consequences that [he] just got.” (Doc. No. 7 at 4.) Verbal threats,

however, do not violate a prisoner’s rights under the Constitution. See James v.
Varano, No. 1:14-cv-1951, 2017 WL 895569, at *4 (M.D. Pa. Mar. 7, 2017) (citing
cases); Cabrera v. Clark, No. 1:16-cv-392, 2016 WL 1109473, at *7 (M.D. Pa. Mar.
22, 2016). Accordingly, the Court will dismiss Plaintiff’s claim against Defendant

Craig as well.
B. Supervisory Liability
Defendants next assert that Plaintiff has not set forth plausible supervisory

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liability claims against Defendants Warden Clark and Lucas. (Doc. No. 29 at 8-9.)
Supervisors “may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” See Iqbal, 556 U.S. at 676.
The Third Circuit has noted that there are two theories of supervisory liability
applicable to claims brought pursuant to 42 U.S.C. § 1983: (1) “a supervisor may be

personally liable under § 1983 if he or she participated in violating the plaintiff’s
rights, directed others to violate them, or, as the person in charge, had knowledge of
and acquiesced in his subordinates’ violations”; and (2) policymakers may also be
liable under § 1983 “if it is shown that such defendants, ‘with deliberate indifference

to the consequences, established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.’” See A.M. ex rel. J.M.K. v. Luzerne Cty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). With respect to the second

theory of liability, the plaintiff must allege that “(1) existing policy or practice
creates an unreasonable risk of constitutional injury; (2) the supervisor was aware
that the unreasonable risk was created; (3) the supervisor was indifferent to that risk;
and (4) the injury resulted from the policy or practice.” See Merring v. City of

Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing Sample v. Diecks,
885 F.2d 1099, 1118 (3d Cir. 1989)).
In the instant case, Plaintiff’s amended complaint fails to set forth plausible

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supervisory liability claims against Defendants Warden Clark and Lucas. He does
not identify a policy or practice set forth by Defendants Warden Clark and Lucas

that allegedly caused the violation of his constitutional rights. Rather, Plaintiff
merely alleges that Defendant Warden Clark “is the one that gave these officers jobs”
and that Defendant Lucas is “[responsible] for the security [detail] and he’s

[responsible] for the officers that beat [him] up.” (Doc. No. 7 at 7.) To the extent
that Plaintiff seeks to hold Defendant Warden Clark liable for his decisions to hire
the officers involved, Plaintiff has failed to identify some aspect of these officers’
backgrounds that would have indicated a propensity to commit the alleged

constitutional violation. See Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 412
(1997). Plaintiff, however, has not done so in his amended complaint. Rather, it
appears that Plaintiff seeks to hold Defendants Warden Clark and Lucas liable solely

because their supervisory positions at DCP, which he cannot do. Accordingly, the
Court will grant Defendants’ partial motion to dismiss with respect to Plaintiff’s
claims against Defendants Warden Clark and Lucas.
C. Injunctive Relief

Finally, Defendants assert that Plaintiff’s transfer to SCI Camp Hill moots his
requests for injunctive relief. (Doc. No. 29 at 10.) The Court agrees. See Sutton v.
Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (noting that “[a]n inmate’s transfer from

10
the facility complained of generally moots the equitable and declaratory claims”).
Accordingly, Defendants’ partial motion to dismiss will be granted on this basis, and

Plaintiff’s request for injunctive relief will be dismissed as moot.
D. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal

for failure to state a claim, the district court must permit a curative amendment,
unless an amendment would be inequitable or futile. Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002). This instruction applies equally to pro se
plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d

Cir. 2004). “A district court has ‘substantial leeway in deciding whether to grant
leave to amend.’” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564
F. App’x 672 (3d Cir. 2014) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.

2000)). At this time, the Court cannot conclude that it would be either inequitable
or futile to allow Plaintiff to file a second amended complaint regarding his claims
for damages against Defendants Clark, Craig, Hammer, Warden Clark, and Lucas.
Accordingly, the Court will give Plaintiff leave to file a second amended complaint,

in accordance with the directives for such set forth in the accompanying Order,
within thirty (30) days.

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IV. CONCLUSION
For the foregoing reasons, Defendants’ partial motion to dismiss (Doc. No.

26) will be granted and Plaintiff’s claims against Defendants Clark, Craig, Hammer,
Warden Clark, and Lucas will be dismissed for failure to state a claim upon which
relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court will

permit Plaintiff to file a second amended complaint within thirty (30) days of the
date of the Order filed concurrently with this Memorandum.
s/Sylvia H. Rambo
Sylvia H. Rambo
United States District Judge

Dated: November 26, 2019

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408010. Public record. Not legal advice.